Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Thursday, January 26, 2012

Jan 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-1313. Appealed from the Western District of Michigan at Grand Rapids. The case is part of a broad redevelopment scheme in Benton Harbor, Michigan, where the city government leased part of its Jean Klock Park to a developer, Harbor Shores Community Redevelopment, Inc., for conversion into a golf course. In exchange, the City received other land that the developer agreed to improve and incorporate into a system of trails. Julie Weiss and other Park users sued the City and two Federal agencies, the National Park Service and the Army Corps of Engineers, that had approved the project. The district court granted summary

judgment to the defendants on some of Weiss's claims and dismissed others for lack of standing.

The Appeals Court explains, "Julie Weiss and other concerned citizens sued to stop a development project that she says has caused environmental damage. The district court rejected her challenges. We affirm as to some of Weiss's claims and hold that we are without power to decide the others."

The Appeals Court indicated further that the district court held that Weiss lacked standing for certain claims. "We agree as to one" i.e. that the land exchange violated the Land and Water Conservation Fund Act regarding the market-value provision of the Act requires the substitute "recreation properties" to have "at least equal fair market value" as the leased park. The appeals Court said Weiss "lacks standing to assert her market-value claim under the Land and Water Conservation Fund Act." However, the Appeals Court said, "The district court erred, however, in concluding that Weiss lacked standing for another of her claims: that the land swap did not 'accord with' Michigan's Outdoor Recreation Plan. . . Weiss has standing to assert this claim."

The Appeals Court explains, however, "Weiss must also show that her claims are not moot. The agencies argue that 'events have taken place during the pendency of the appeal that make it impossible' for our court to grant 'effective relief' on many of Weiss's claims. . . Weiss originally sought to halt the development project and have it declared illegal, but the project is now largely finished. (The district court denied Weiss's motion for a temporary restraining order and preliminary injunction, and Weiss chose not to appeal the denial.) The golf course is now constructed and open. The new parkland has been completely, or almost completely, improved. Therefore, the agencies say, the damage (to the extent there is any) has already been done; we are without power to stop it."

The Appeals Court said, "Weiss might as well ask a meteorologist on Friday to redo the Thursday forecast. Her claims under the National Environmental Policy Act are moot. For similar reasons, Weiss's claims under the National Historic Preservation Act are also moot. . . Weiss is left with two claims that we can adjudicate. Both concern the National Park Service's compliance with other provisions of the Land and Water Conservation Fund Act." First, Weiss says that the National Park Service acted arbitrarily in finding that the new parkland that the City received in the land swap had a "usefulness and location" that was "reasonably equivalent" to the leased portion of the Park. Weiss also claims

that the project was not "in accord with" Michigan's Outdoor Recreation Plan, which divergence would violate the Act.

On the first issue, the Appeals Court indicates that "Weiss's claim failed on the merits." On the second claim, the Appeals Court said, "The Service did not act arbitrarily in finding that exchanging underused parkland for new trails was consistent with Michigan's Comprehensive Outdoor Recreation Plan." Finally, the Appeals Court rules, "We vacate the district court's judgment on Weiss's National Environmental Policy Act and National Historic Preservation Act claims, and remand with instructions to dismiss those claims as moot. We otherwise affirm."

In a press release commenting on the decision, Terry Lodge, attorney for the plaintiffs said, "We're perplexed that the court mentioned nowhere in its opinion the serious toxic contamination of five of the seven (7) parcels of land traded to the public to make up for the loss of the acreage on the crests of the Jean Klock Park dunes. Harbor Shores' own consultant report suggests that only the thick concrete and wood-chip paths across the parcels, which the consultant calls 'isolation zones,' will be safe for families and children to use. The City, Harbor Shores, and ultimately the National Park Service all completely failed to tell the public before the deal was sealed that 5 of the 7 parcels of supposed new parkland have serious poisons oozing to the surface and polluting the Paw Paw River, and they did not explain how that economically-worthless acreage was a fair trade for the spectacular and unpolluted Lake Michigan overlooks of Jean Klock Park."

LuAnne Kozma, an activist formerly with Defense of Place, now with Public Park Advocates and a member of the plaintiffs' legal team, noted, "It is a travesty that the National Park Service argued this case to trade historic Jean Klock Park land, with its half-mile of Lake Michigan lakefront and dunes, for worthless, contaminated parcels inside a private golf course. Now that the National Park Service got the decision it wanted, it must watch over the contaminated Harbor Shores parcels 'in perpetuity' as public parkland. But 'in perpetuity' means nothing any longer. The public in Benton Harbor has lost a park that was precious and priceless. What has been lost to everyone in the U.S. is the idea that parks are to be protected forever.'" The plaintiffs said they have not determined whether they will take the matter to the U.S. Supreme Court, or not.

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